1 Introduction

The Australian Human Rights Commission (the Commission) makes this
submission to the Senate Legal and Constitutional Affairs Committee in its
Inquiry into Access to Justice.

This submission will consider the ability of Indigenous people to access
justice based on the work of the Aboriginal and Torres Strait Islander Social
Justice Commissioner.

Access to justice is an issue for all Australians but resource constraints
mean that the Commission's submission is limited to access to justice for
Aboriginal and Torres Strait Islander peoples only.

2 Summary

Indigenous people are over represented in all aspects of the criminal
justice system, both as victims and offenders. Indigenous people have complex
legal needs, arising from issues around language, cross cultural barriers and
social disadvantage.

Despite the large number of Indigenous people involved in the criminal
justice system and their complex needs, they face inadequately resourced legal
services. Research has shown that there is a significant lack of parity between
the funding for Aboriginal and Torres Strait Islander Legal Services (ATSILS)
and Legal Aid Commissions which can result in poorer access to justice.

Indigenous women face barriers in accessing legal services. Because the work
of ATSILS is predominantly criminal law focussed, the greater part of available
legal services is directed to Indigenous men. Proportionally, men constitute a
larger majority of the Indigenous population charged with criminal offences.

The recent expansion of Family Violence Prevention Legal Services to 31
Units across Australia increases options for Indigenous women. However, the
majority of Units are concentrated in regional and remote locations, leaving a
gap in services for urban Indigenous women.

In light of the approach taken by Australian Government’s recent
Strategic Framework for Access to Justice in the Federal Civil Justice System,
this submission adopts a ‘system wide
approach’[1] that sees access to
justice as a ‘key means of promoting social
inclusion’.[2] To do this, we
put forward ‘justice reinvestment’ as a broad justice reform aimed
at increasing Indigenous access to justice, as well as improving social services
for disadvantaged Indigenous communities. The concept of justice reinvestment is
outlined in Part 4.4 of this submission.

3 Recommendations

The Australian Human Rights Commission recommends that:

the level of funding to ATSILS be increased to achieve parity with Legal Aid
Commissions and to reflect the complexity of the work they undertake

a comprehensive audit of legal services for Indigenous women be undertaken.
The audit must include (a) information about the areas where legal services
exist for women; (b) information about areas where there are no services, or
limited services for women; (c) profiles of the geographic locations from which
Indigenous women are being incarcerated and the types of crimes; (d)
recommendations for the better provision of legal services for women and an
increase in crime prevention services available for whole communities.

the Australian government, in cooperation with the states and territories,
develop a strategy for implementing ‘justice reinvestment’,
including the selection of initial pilot program
locations.

4 Access to justice for
Indigenous Australians

4.1 Over
representation of Indigenous people in the criminal justice system and complex
legal needs

Indigenous people are over represented as both offenders and victims in the
criminal justice system and present with a range of complex legal needs which
impact upon their ability to access justice.

Research has consistently shown alarming rates of over representation in the
criminal justice system:

In research conducted on the 2008 prisoner population, it was found that
nationally, Indigenous adults are 13 times more likely to be imprisoned than
non-Indigenous adults.[3]

The Overcoming Indigenous Disadvantage 2009 report found that Indigenous
juveniles are 28 times more likely to be placed in juvenile detention than their
non-Indigenous counterparts.[4]

The Indigenous imprisonment rate has increased by 46% for Indigenous women
and by 27% for Indigenous men between 2000 and
2008.[5]

In 2002, research found that Indigenous people comprised 26% of all police
custodies in Australia, making them 17 times more likely to be held in police
detention than non-Indigenous
people.[6]

In the 2002 National Aboriginal and Torres Strait Islander Social Survey
(NATSISS) nearly one in four Indigenous persons reported being the victim of
actual or threatened violence in the previous 12
months.[7] This was double the rate
reported in the 1994 NATSISS.

Victorian research has demonstrated that Indigenous women in that State are
four times more likely to be victims of indictable assaults, three times more
likely to be victims of summary assaults and twice as likely to be victims of
sexual assault as non-Indigenous women in
Victoria.[8]

The rate of substantiated notifications for child abuse and neglect for
Indigenous children has been increasing between 1999 to 2008. Indigenous
children are six times more likely to have a notification for child abuse or
neglect which is found to be substantiated and seven times more likely to be
subject to a Care and Protection Order than non-Indigenous
children.[9]

These statistics indicate that Indigenous people have a high need for legal
services. The 2002 NATSISS showed that 20% of Indigenous people reported using
legal services in the past 12 months for either criminal, civil or family
matters.[10]

As well as the sheer volume of Indigenous people involved with the legal
system there are a number of compounding factors that make their legal needs
more complex.

Language issues impact on access to justice with English not being the first
language in some Indigenous communities. For instance, the Western Australian
Department of Justice found that 14% of Indigenous women prisoners spoke an
Indigenous language as their first
language.[11] The nuances of Aboriginal English can also lead to misunderstanding between
clients and their lawyers.

Cross cultural issues also play a role in access to justice. While some of
these issues are being addressed through the use of specialist Indigenous
courts,[12] the majority of
Indigenous people still appear before mainstream courts that may at times
struggle to bridge the cultural
divide.[13]

Broader issues of disadvantage and social exclusion also increase the
complexity of Indigenous legal needs. In particular, lower levels of educational
attainment,[14] as well as high
levels of hearing loss,[15] disability[16] and mental health
problems,[17] can all impede
understanding of legal processes and require appropriate adaptations.

4.2 Aboriginal and
Torres Strait Islander Legal Services

Given the number of Indigenous people involved with the legal system and the
complexity of their needs, it is vital that Aboriginal and Torres Strait
Islander Legal Services (ATSILS) are adequately resourced and accessible to all
Indigenous people.

ATSILS developed in the 1970s and have been seen as a cornerstone in the
struggle for Indigenous rights. However, their value is far from just symbolic.
ATSILS have unique cultural competence and expertise, especially through the use
of Indigenous Field Officers. This improves equitable access to justice that,
according to Cunneen and Schwartz:

goes to the heart of questions of
access, equity and the rule of law. It represents the ability of Indigenous
people to use the legal system (both criminal and civil) to the level enjoyed by
other Australians.[18]

Presently, ATSILS are underfunded for the work they do. Funding has not kept
pace with the growth in criminal cases before the courts. The number of criminal
cases dealt with by the ATSILS between 1998 to 2003 increased by 67%, however,
funding did not increase substantially during this
period.[19]

The research by Cunneen and Schwartz has highlighted the significant
disparity in funding between ATSILS and Legal Aid Commissions, the latter
providing a mainstream service. Comparing the Northern Territory Legal Aid
Commission (NTLAC) and the North Australian Aboriginal Justice Agency (NAAJA),
they found that the NTLAC had a 59% greater budget than NAAJA, despite NAAJA
undertaking three times as many criminal matters, as well as a greater total
number of criminal, civil and family law matters
combined.[20]

To meet this huge work load, ATSILS lawyers have larger caseloads and have
substantially less resources for each case. According to Cunneen and Schwartz:

A further indication of this disparity in resources is the money
spent on client costs (ie medical certificates and associated costs,
psychological assessments, court fees, etc) in criminal matters. NTLAC expended
$871,357 compared to NAALAS’ $60,000 – and this amount was spent on
one third the number of criminal cases run by the NTLAC. As an average, court
costs for criminal matters by the NTLAC were $762 per matter, compared to $17
per matter by NAAJA.[21]

Other ATSILS have dealt with the funding short falls by limiting services.
The Aboriginal Legal Service (NSW/ACT) no longer offers a civil law services due
to funding constraints. The service closed down its family law practice at the
end of June 2008 as a result of there being no increase in its Commonwealth
funding
arrangements.[22]

4.3 Legal services
for Indigenous women

Indigenous women as victims of family violence face even greater barriers to
legal representation. In most cases it will be the offender, rather than the
victim who is eligible for legal aid through ATSILS. This is because when a
criminal charge is laid, the offender will come to the attention of the ATSILS
quickly and become a client of the service. The ATSILS are then unable to offer
assistance to the victim.

The introduction of Family Violence Legal Prevention Services (FVPLS) was
designed to provide assistance to women who were unable to access services from
ATSILS. However FVPLS predominantly service regional and remote locations and
their service coverage is not comprehensive. Some remote regions are without any
service, and the majority of urban areas have no coverage. While FVPLS exist in
Melbourne and Darwin, their service provision is concentrated on regional and
remote geographic locations. This places some significant limits on Indigenous
women’s access to legal services.

In Western Australia and South Australia the ATSILS are the auspice bodies
of some of the FVPLS. While there are protocols in place so that perpetrators
and victims do not come into contact, this situation is far from
ideal.[23]

In 2008-09 the Commission provided training to some newly appointed
Community Legal Education (CLE) workers from FVPLS. Their role is to undertake
prevention education and training and community development activity in remote
communities. However, funding for these positions has been limited to
approximately 15 workers across Australia. This means that the majority of FVPLS
have no preventative education component to their service. Violence prevention
community development is an essential part of any Indigenous family violence
prevention legal service.

Consultation with FVPLS workers and evaluations of the Commission’s
CLE training identified that violence prevention education and information
services are best targeted at both men and women. Community campaigns,
information sessions and community development activities should be focussed on
whole communities and this can include perpetrators. Ideally, preventative
education and information should be provided by CLEs off site.

In 1994, the Australian Law Reform Commission report Equality Before the
Law: Justice for Women recommended the establishment of separate legal
services for Indigenous women.[24] Given the dramatic increase in incarceration rates for Indigenous women, there
is now an urgent requirement for action. Profiling of patterns of incarceration
and demand for services must be undertaken to ensure Indigenous women have
access to justice.

4.4 Justice
reinvestment

Given that the over representation of Indigenous people in the criminal
justice system , it makes sense that we consider ways of reducing Indigenous
involvement in the criminal justice system in the first place. This also has
implications for reducing the costs of delivering justice.

The Commission proposes ‘justice reinvestment’ as a possible
solution to the over representation of Indigenous people in the criminal justice
system.

Justice reinvestment will be discussed in the Commission’s forthcoming
Social Justice Report. The Social Justice Report is tabled in Australian
Parliament each year and is influential in setting the agenda for Indigenous
affairs across the nation.

The concept of justice reinvestment originated in the United States. It was
initially developed by the Open Society Institute in 2003 but has since been
taken up in 10 states in the US (Arizona, Oregon, Connecticut, Kansas, Michigan,
Nevada, Pennsylvania, Rhode Island, Texas, Vermont and
Wisconsin).[25]

Justice reinvestment is a criminal justice policy approach that diverts a
portion of the funds spent on imprisonment to the local communities where there
is a high concentration of offenders. The money that would have been spent on
imprisonment is reinvested in programs and services that address the underlying
causes of crime in these communities. It is not just about tinkering around the
edges of the justice system – it is about trying to prevent people from
getting there in the first place.

Justice reinvestment retains detention as a measure of last resort for
dangerous and serious offenders, but actively shifts the culture away from
imprisonment. Instead of imprisoning people it starts providing community wide
services that will actually prevent offending.

US Congress has recently held hearings on justice reinvestment. Justice
reinvestment is also attracting a lot of attention in the United Kingdom, with
Parliamentary inquiries and influential backers like Cherie Booth, making
recommendations about its use in the United
Kingdom.[26]

The reason for the spread of justice reinvestment is its efficacy. For
instance, in Kansas where justice reinvestment has been implemented, there has
been a 7.5% reduction in their prison population; parole revocation is down by
48%; and the reconviction rate for parolees has dropped by
35%.[27]

Justice reinvestment has as much in common with economics as social policy.
It asks the question: is imprisonment good value for money? The simple answer is
that it is not, given the high levels of recidivism and negligible impact on
crime rates.

In Australia we spent $9 billion on criminal justice in
2006-2007.[28] Of this approximately
$570 million was spent on the administration of criminal
courts[29] and $2.6 billion was
spent on adult corrective
services.[30]

Indigenous adults make up roughly a quarter of all prisoners nationally.
Very crudely, we can estimate that at least one quarter of the entire
imprisonment expenditure ($650 million) would be spent imprisoning Indigenous
adults each year. It could easily be more, given the higher costs associated
with running prisons in remote areas and for women. In the Commission’s
view, this money would be much better spent at seeking to prevent crime rather
than in the imprisonment of individuals.

Justice reinvestment is also based on evidence that a large number of
offenders come from a relatively small number of disadvantaged
communities.[31] The concentration
of offenders logically suggests that there should also be commensurate
concentration of services and programs to prevent offending in these
communities.

Demographic mapping in the US has identified ‘million dollar’
blocks where literally millions of dollars are being spent imprisoning people
from certain neighbourhoods. For example, for one neighbourhood, The Hill in
Connecticut, $20 million was spent in one year imprisoning just 387 people. The
Hill is disproportionately made up of low income, African Americans.

There is emerging evidence that we have our own communities with high
concentrations of offenders and spending on detention and imprisonment. Thorough
demographic mapping of offending hasn’t been done in Australia yet, but
researchers such as Professor Tony Vinson have already identified the most
disadvantaged post codes in
Australia[32] - many of these have
higher than average Indigenous populations.[33]

Preliminary analysis of information supplied for the Social Justice Report
by the state and territory departments responsible for corrections and juvenile
justice identifies a number of communities with high concentrations of
Indigenous incarceration. These communities are in urban and remote locations
and include places like Blacktown, Dubbo, Port Augusta, Broome, Halls Creek,
Darwin and Alice Springs. This data is very preliminary but it does suggest that
there are Indigenous communities that could benefit from justice reinvestment
strategies.

Justice reinvestment also analyses legislative and policy factors which lead
to imprisonment. For instance, in the United States many of the participating
jurisdictions have amended parole, probation and bail laws in an attempt to
reduce imprisonment.[34]

Justice reinvestment would require cooperation between legislators, courts
and corrections to target policies which have the effect of increasing
imprisonment. For instance, in NSW one way of reducing juvenile detention would
be to revoke the amendments the Bail Act which restricted the number of bail
applications which can be made. Research by the NSW Bureau of Crime Statistics
and Research concluded that these amendments to the Bail Act, in conjunction
with police enforcement of bail laws, resulted in a 32% increase in the number
of young people on remand between 2007 and
2008.[35] Similarly, there are
concerns that new mandatory sentencing laws in Western Australia may also
contribute to an increase in Indigenous imprisonment rates.

Justice reinvestment has a very strong community focus. It recognises that
incarcerating or otherwise detaining a large proportion of the population
weakens the community, creating the conditions for further crime. This is what
we are seeing in many of our Indigenous communities. We are seeing whole
generations of men being removed from the community, large numbers of parents
being separated from their children and young people taken away from their
supports. All of this drains the community’s capacity to tackle crime and
build safe communities.

The community becomes the focus in justice reinvestment and is crucial in
developing strategies and programs that will help prevent crime. Sometimes the
money is spent on improving the provision of juvenile and community justice
services, but ideally it is spent on early intervention and diversion services.

In working with Indigenous communities, the importance of engaging the
community and supporting Indigenous run programs cannot be overstated. Justice
reinvestment is an opportunity to put some much needed funds back into the
communities where Indigenous offenders are coming from.

The idea of reinvestment in whole communities is quite a departure from
current policy approaches which focus specifically on the individual. Most
corrections programs provide individual and some group work, but little support
for the broader community. While you dedicate funding to placing an offender in
a well resourced, effective rehabilitation program, if they eventually return to
a community with few opportunities, their chances of staying out of trouble are
limited.

This obviously has implications for victims as well as offenders, especially
in the context of family violence. Many people who have worked in family
violence prevention in Indigenous communities report that the women say
‘help us look after our men’.

If all we do is remove people from communities where there is family
violence – we can expect at some point they will return, and that the
situation will be unchanged. The offender is likely to be still exhibiting the
same behaviours and there is likely to be little support for the offender in his
disadvantaged community. The impact of the violence within the family and the
offender’s incarceration are likely to be intergenerational. Proactive
efforts to work with communities and to provide support to communities on issues
like healing, alcohol management and parenting may provide enormous benefits and
avoid the costs in emotional and in financial terms.